This is not a UNHCR publication. UNHCR is not responsible for, nor does it necessarily endorse, its content. Any views expressed are solely those of the author or publisher and do not necessarily reflect those of UNHCR, the United Nations or its Member States.

THOMAS R. LANSNER

Thomas R. Lansner is adjunct associate professor of International Affairs at Columbia University School of International and Public Affairs and an academic advisor to Freedom House's Freedom in the World Survey.

INTRODUCTION

Despite progress toward establishing many core democratic principles, Zambia faces critical challenges to consolidating its democracy as the country struggles to find consensus on a new constitution and assure a broad perception of fairness in presidential and parliamentary elections expected by October 2011. Since the country's transition from a one-party state in 1991, the incumbent Movement for Multiparty Democracy (MMD) has effectively used state powers over patronage and the media to preserve its rule. The current MMD administration, led by President Rupiah Banda since 2008, has failed to adequately combat endemic corruption that hampers economic development and erodes many Zambians' faith in the democratic process. A 2009 survey found that while a great majority of Zambians believe democracy is the best form of governance, less than half are satisfied with how the system is working in their own country.1

Zambia was ruled by the United National Independence Party (UNIP) and President Kenneth Kaunda from its independence from Britain in 1964 until 1991. Kaunda outlawed the vigorous multiparty competition that had developed in the last years of colonial rule and oversaw an increasingly corrupt one-party system. Zambia's authoritarianism was relatively mild, however, and the trade union movement and groups within the nascent civil society joined with UNIP's political opponents to broker a peaceful return to multiparty politics in the late 1980s. The MMD gathered as a broad collection of prodemocracy groups, and led by union leader Frederick Chiluba, achieved a convincing victory over Kaunda and UNIP in October 1991 elections.

Chiluba ruled for a decade, during which time Zambia's hopes for an open and honest democratic government became mired in the MMD's manipulation of power to protect its privilege, as well as a growing morass of corruption. Chiluba twice assumed emergency powers, and the MMD made constitutional changes to disqualify former president Kaunda and other leading candidates from contesting the flawed 1996 presidential poll that kept Chiluba in power. Chiluba's efforts to scrap the presidential two-term limit provoked strong domestic and international donor resistance, however, and in 2001 former vice president Levy Mwanawasa stood as the MMD candidate, with Chiluba's strong support. Against a divided opposition, and amid serious doubts over the election's conduct, Mwanawasa prevailed with only 29 percent of the vote, while the MMD retained control of the National Assembly.

Surprisingly, the new president soon broke with his mentor by launching an anticorruption campaign that gained wide support within Zambia and from donor countries. Mwanawasa was reelected in September 2006 with broader support in what was viewed as a more credible contest; the MMD again narrowly retained its National Assembly majority. As his second term began, Mwanawasa continued his efforts to raise governmental integrity, including corruption investigations against his predecessor and other senior officials.

Mwanawasa died in August 2008 after suffering a stroke. His death raised fears of turmoil in Zambia, as the constitution details no automatic succession and requires a special election for the remainder of a presidential term. The election campaign was calm, however, and in October 2008, the MMD candidate, Vice President Rupiah Banda, was elected president with 40 percent of the vote, over 38 percent for Michael Sata of the Patriotic Front (PF) party, and 20 percent for Hakainde Hichilema of the United Party for National Development (UPND). As in previous contests, the MMD used state resources, including a strong presence in Zambia's media, to promote its candidate's bid, and some observers again noted electoral anomalies. A few violent protests that flared after results were announced subsided when Sata appealed for restraint. Zambia's Supreme Court dismissed a PF challenge to the election's validity in March 2009, a decision widely expected whatever the merits of the case, given the strong influence of the executive on Zambia's judiciary.

The Banda Administration subsequently adopted an increasingly confrontational approach to politics and policymaking. The faltering anticorruption campaign was spotlighted by the dismissal of graft charges against former president Chiluba, which reinforced questions about judicial independence – and led to suspensions of international aid. Civil society and independent media have faced renewed pressures, and the constitutional reform process has faltered. While economic liberalization and soaring copper prices have continued to spur economic growth, poverty remains widespread, while privatizations and the treatment of workers in foreign-owned mines are contentious issues. Chinese-controlled enterprises in particular are accused of flouting Zambian investment and labor regulations. The ethnoregional bases of Zambia's three main political parties also raise concerns that ethnicity might become more influential in Zambian politics in future elections.

ACCOUNTABILITY AND PUBLIC VOICE

Improvement in the efficiency of Zambia's electoral system and the conduct of its elections has been uneven since the country's transition to multiparty politics in 1991. Elections are still marred by anomalies that affect the fairness of the electoral landscape and potentially the propriety of voting. While all parties have been able to mount energetic election campaigns over the last two decades, sporadic violence and intimidation during some by-elections in 2009 and 2010 presents a worrying trend.2

The current first-past-the-post presidential system – also applied in the single-member district National Assembly races – awards office to the candidate receiving the greatest number of votes. Many Zambians believe that the change most necessary to enhance presidential legitimacy is a constitutional revision to require presidential candidates to gain over 50 percent of the popular vote to win office, as was suggested in 2005 by the Mung'omba Constitutional Review Commission appointed by the late President Mwanawasa. The ruling MMD, which retained power in each of the last three presidential contests without winning a majority vote in any, rejected this reform for the 2011 presidential polls, though the NCC decided to let the issue go to a referendum. Because of the need to first complete a national census, the referendum could not take place before the 2011 elections. According to a recent opinion poll from the Synovate group, public opinion on this issue is sharply divided. A clear choice between two leading candidates could produce a winner with far greater legitimacy across the Zambian electorate.

Elections are overseen by the Electoral Commission of Zambia (ECZ), whose members are appointed by the president, and whose autonomy is questioned by the opposition and civil society groups. Under the Electoral Act of 1996, the ECZ created a new Electoral Code of Conduct, which made voter intimidation a punishable offense. It also prohibited the use of state resources for campaigning and required "fair and balanced" media reporting, with equal airtime in state media for all parties.3 Nonetheless, most state media still strongly promote the government/MMD positions, and the Media Institute of Southern Africa complained of a spike in media freedom violations during the 2008 presidential campaign. All community and private radio stations were ordered to suspend live phone-in programs, and the leading private newspaper, the Post, was enjoined by the Lusaka High Court from publishing allegedly libelous articles about President Banda.4

The ECZ is credited with improving electoral administration, including better logistics and more transparent procedures for vote counting and tabulation. It is currently implementing donor-backed campaigns to increase voter registration incorporating biometric technology, with the goal of enrolling 2.5 million new voters by the 2011 elections.5 Electoral participation, which had risen to an unprecedented 2.8 million voters and 71 percent turnout in 2006, plummeted to fewer than 1.8 million voters and 45 percent turnout in 2008.6 The ECZ and nongovernmental organizations (NGOs) such as the Anti-Voter Apathy Project have mounted civic and voter education campaigns in hopes of reviving voter participation in what might be a hotly disputed election. In 2010 and 2011 the ECZ implemented a voter registration exercise and managed to increase the numbers on the roll to over five million for the first time in Zambia's history. Because of the inefficiency of the national births, marriages, and deaths registration system, however, serious flaws with the roll remain, and the names of hundreds of thousands of dead or migrated people still appear on it. An ECZ-led multi-stakeholder review of the Electoral Code of Conduct in October 2010 urged that all election results be released within 48 hours, and suggested that the police and other law enforcement agencies help assure compliance with its provisions.7 However, the ECZ's investigative and enforcement capacities are very limited.

Moreover, the dismissal of the ECZ's director and the resignation of its chair in January 2011 increased concerns over preparations and conduct of the 2011 election. These fears calmed somewhat with the appointment of the experienced Deputy Chief Justice Irene Mambilima to the post of ECZ Chair. Mambilima had previously held this post and is viewed as fair and competent. But further worries were raised by allegations by the Patriot Front that the ECZ had engaged in corrupt practices relating to the tender for printing of ballot papers.

National Assembly elections have been more open and competitive than presidential contests, but also are more subject to localized intimidation and violence, as well as abuse of state resources. There are no effective regulations or practical controls on campaign funding or spending. Zambia's unicameral parliament is composed of 158 members, of which 150 are elected to five-year terms; 8 are appointed by the president, which has served to reinforce MMD leadership. Parliament has been controlled by the ruling MMD since the revival of a multiparty system. In the 2006 legislative polls the MMD won 75 seats, the Patriotic Front (PF) took 43, and the United Democratic Alliance coalition 27. Opposition parties have often fared better in local council elections. There are 72 local authorities (4 city, 12 municipal, and 56 district councils), although little real power or resources have been accorded to these decentralized structures.8 A 27-member House of Chiefs also exists to advise the government on traditional customs and practices. The power of local chiefs varies widely. They control customary courts, which often handle family and property disputes in rural areas, and whose rulings and practices may clash with national laws and human rights standards, especially regarding women's rights. On the other hand, the chiefs' engagement can be positive in a variety of matters, such as encouraging better health practices.9

Greater opposition representation in parliament has promoted more active debate on national priorities and policies. Yet the executive remains dominant in Zambia's governance. The parliament has proved unable or unwilling to provide effective oversight of the executive branch, and constituent services are more closely linked to the MMD's party patronage machine than parliamentarians' advocacy. A donor-supported Parliamentary Reform Programme (PRP), now in its third phase, has strengthened some areas of parliamentary performance, but legislators have little involvement in the budget process, and lack staff and research capacity to contribute consistently to policy debate. More than 60 members of parliament (MPs) were serving as ministers or deputy ministers in 2009, further eroding parliamentary autonomy vis-a-vis the executive.10 On a broader scale, Zambia's parliament has not pursued effective action to curb endemic corruption, despite recognition of the gravity of the challenge demonstrated by the creation of various anticorruption mechanisms. The Parliamentary Public Accounts Committee, for instance, has provided some oversight but is limited by capacity and enforcement constraints.

Senior positions in Zambia's civil service are filled by presidential appointees, and the government bureaucracy has long been viewed as subject to nepotism and patronage, a pattern unchanged under the Banda administration, despite strong government rejection of such claims.11 Some observers also charge that executive appointees in the civil service steer official funding to support the ruling party's electoral needs.12 Donor-supported efforts to improve public sector capacity are ongoing, including a long-running Public Service Reform Programme (PSRP).13

Zambia's civil society has grown from its bases in the trade union and church sectors to include a broad range of groups engaged in research, mobilization, and advocacy on many issues. They mostly operate openly and freely, despite occasional governmental attempts to curb specific organizations. Civil society organizations seek to shape public awareness and debate through educational and lobbying campaigns, offer testimony to parliament, and have been invited to join official dialogue on some issues. On one of the most important issues facing Zambia, constitutional reform, many civil society groups declined to participate in consultations of the National Constitution Commission (NCC), which concluded in mid-2010, asserting that the entire process was a flawed and politically motivated mechanism to revise many progressive recommendations in the earlier Mung'omba Commission draft.14 Many are largely donor-funded, raising questions of sustainability and agendas.

Legislation passed in August 2009 requires all NGOs to reregister every five years, and to supply annual reports on their activities, accounts, funding sources, and the individual assets of their officials. A government-dominated NGO Registration Board will have broadly-defined powers to influence NGO operations, and noncompliance could lead to suspension or cancellation of registration.15 Local and international groups made strong protests against several of the still-unimplemented law's provisions, which could have a chilling effect on the entire civil society sector.16 Even under the previous law, the government had attempted to silence NGO critics through registration requirements. An appeal against the deregistration of the Southern Africa Centre for the Constructive Resolution of Disputes (SACCORD) was rejected by the High Court in March 2010. SACCORD, a persistent and vociferous critic of what it sees as abuses of power, was deregistered on the basis that it was "dangerous to State security."17 However, SACCORD continues to function as its legal status is determined at the Supreme Court.

The future of Zambia's constitution, including its provisions for media freedom, has been the subject of considerable debate in the Zambian media. The NCC draft cut a proposed clause from the Mung'omba Commission draft affirming that "subject to this constitution, a law shall not make any provision that derogates from freedom or independence of the press and other media."18 Articles 20.1 and 20.2 of the current constitution guarantee freedom of expression and press freedom, respectively, but Article 20.3 immediately devalues these rights by offering a litany of limitations in the interest of national defense, public safety, public order, public morals, public health, and more. The penal code empowers the president to ban at his "absolute discretion" any publication whose content he deems contrary to the public interest. Other laws limit freedom of expression by protecting the president and MPs from criticism. The penal code also provides up to seven years' imprisonment for sedition, broadly and vaguely described as the "intention ... to excite disaffection against the government" or "to raise discontent or disaffection among the people of Zambia".19 In January 2011, two journalists were charged with sedition in relation to their coverage of unrest in Zambia's Western Province.20

The state relinquished its media monopoly in 1990. While a great deal of information is available to Zambians with access to English-language print media and private broadcasting, state media remains dominant. The government controls the Zanis news agency and two of Zambia's three major newspapers, the Times of Zambia and the Zambia Daily Mail. These dailies, and the state-run Zambia National Broadcasting Corporation's radio and television services, have the deepest and broadest penetration countrywide, and are rarely critical of government or the MMD. Nonetheless, the Post has a daily circulation of approximately 50,000 copies nationwide, which is significantly more than either the Times or Daily Mail. About 35 private and community radio stations, including religious and educational outlets, usually operate without overt governmental interference, as do four private television stations. Increases in police raids (as on Mobi-TV in June 2010), official threats against individual outlets (as against SKY-FM in June 2009), and physical assaults on journalists, however, may lead to wider self-censorship.21 The independence of private broadcast media and the autonomy of state-owned media were – nominally – greatly enhanced by the Independent Broadcasting Authority (IBA) Act of 2002, and the Zambia National Broadcasting Corporation (ZNBC) Amendment Act of 2002, but neither law has been implemented by the executive.22

Zambia's media have come under renewed and increasing pressure since President Banda took office in 2008. The government's proposed statutory media regulation has been sharply debated in recent years. Media groups' suggestion of voluntary self-regulation through the Zambia Media Council (ZAMEC) has been dismissed by Information and Broadcasting Services Minister Lieutenant General Ronnie Shikapwasha.23 The role and control of media in the 2011 electoral cycle may also be contentious. State media has shown a marked tendency to support the ruling party during previous elections. The Electoral Code of Conduct requires public and private media outlets to "provide fair and balanced reporting of the campaigns, policies, meetings, rallies and press conferences of all registered political parties and candidates."24 Such a highly subjective standard could limit media freedom even if the requirement was imposed impartially by the ECZ, and the commission itself has noted the difficulty of enforcement.25 There is no apparent demarcation between requirements for taxpayer-funded and private media, except in the broadcast sector, where the electoral code requires that "all public television and radio broadcasters shall allocate public air time equally to all political parties for their political broadcasts." Moreover, it is possible that the government will again suspend live radio phone-in shows on private and community radio stations during the 2011 election season.

The independent Post newspaper, and especially its top editor, Fred M'membe, have faced continual harassment and intimidation by the state for over two decades. In November 2009, Post editor Chansa Kabwela was acquitted of "distributing obscene photos likely to corrupt public morals" in the form of photographs of a woman giving birth in a street outside a hospital without medical assistance during a health workers' strike. Kabwela, who had not published the photos in the Post, but sent them to government officials and civil society groups, stated that her acquittal showed "that this was a pure case of harassment and intimidation."26 In a related case, M'membe spent three days in prison in June 2010 before being conditionally released pending appeal of a four-month sentence for contempt of court. He was convicted after the Post published an article by Muna Ndulo, a U.S.-based Zambian law professor, titled "The Chansa Kabwela Case: A Comedy of Errors." President Banda also filed a personal suit against the Post in 2008 alleging defamation, although the case was postponed on the request of the president's lawyers, keeping alive the threat of renewed prosecution.

Physical assaults on media practitioners are also increasing, with several aimed at Post staff and blamed on supporters of the ruling MMD; activists from other parties have also been denounced for perpetrating similar acts. President Banda has condemned such attacks, and in November 2010 an MMD youth wing leader was convicted in connection with two assaults. The Committee to Protect Journalists recorded at least seven attacks against Post staffers in 2009, and noted what appeared to be an implicit threat of future assaults when information minister Ronnie Shikapwasha declared at a May 2009 press conference that "the Post newspaper is reaping what it sowed because you cannot have a newspaper that reports negatively about the republican president most of the time."27 In mid-2009 several Zambian media groups petitioned the government to protect media workers and take further legal action against alleged assailants.28 There is no reported governmental interference with access to or content on the internet, although the government briefly threatened to shut down five of the country's main internet service providers in October 2010 over a licensing dispute.

CIVIL LIBERTIES

Zambia's constitution and laws protect many civil liberties, but a range of statutes and official and traditional practices sharply limit full enjoyment of these rights. On its webpage "About Human Rights In Zambia," the official national monitoring body, the Human Rights Commission (HRC), observes that "by ratifying international conventions Zambia has an obligation to respect, protect and fulfill the human rights of all citizens [but] the provisions of these treaties are not locally effective if not incorporated into the domestic legislation." And even when Zambia's laws meet African and international standards, implementation and enforcement is often lacking. United Nations (UN) bodies have pointed out deficiencies in Zambian laws and have repeatedly requested a detailed response to at least one report of abuse submitted to the UN Human Rights Committee.29

The HRC is remarkably frank in describing the Zambia Police Service as "a major violator of human rights. Some of the worst human rights abuses such as torture and extra-judicial killing of suspects have been committed by police officers and these have been widely condemned by human rights defenders," the HRC writes on its webpage, adding, "other common human rights abuses by the officers include false arrests, illegal and over detention without trial."30 Such acts have been documented by the HRC as well as local, regional, and global civil society groups.31 The Police Public Complaints Authority handles allegations of police misconduct, but few of the cases brought by the public have led to action against police personnel; Human Rights Watch (HRW) reported that only 27 of 245 complaints in 2009 resulted in action against allegedly abusive officers.32 The HRC, while publicizing and urging action on a litany of rights abuses, including torture and terrible prison conditions, relies on other institutions to carry out its recommendations. HRC commissioners are appointed to three-year terms by the president, subject to parliamentary approval.

Zambian prison conditions range from inadequate to horrific and life threatening. Prisons are severely overcrowded, with over 15,000 inmates in facilities designed for one-third that number, and the prisons service is understaffed and poorly resourced. The Prisons Care and Counseling Association (PRISCCA), the AIDS and Rights Alliance for Southern Africa (ARASA), and HRW reported in April 2010 that physical abuse was compounded by abysmal nutrition and an absence of health care, which abets the spread of HIV/AIDS and drug-resistant tuberculosis.33 Overcrowding is exacerbated by the long-term incarceration of numerous detainees awaiting trial, many on bailable offences, due to lack of legal representation and the backlog of unheard cases in Zambia's courts. The government has pledged to increase prison capacity and improve staff conditions, and several civil society groups are active in lobbying for prisoner rights.

Zambian police are reported to routinely mistreat detainees, and on occasion to use torture to force confessions. They also sometimes respond with excessive force to peaceful protests. In March 2010, police fired tear gas on a crowd in the northern city of Kitwe that was protesting the jailing of Frank Bwalya, a Catholic priest and anticorruption activist, and detained 22 people.34 Police shot dead a woman in a refugee camp in northern Zambia and wounded several others during a protest in April 2010, after which 36 refugees were summarily deported to the Democratic Republic of Congo.35 In July 2010, police shot and wounded a man protesting the eviction of informal miners from a disused mine site near Ndola.36 Lack of training, discipline, and crowd control equipment all contribute to a police tendency to quickly resort to live fire if they feel threatened, as does general impunity for such actions.

Zambia media also report instances of police firing on vigilante crowds to rescue people accused of various crimes or witchcraft. Accusations of witchcraft are sometimes used as leverage in local disputes. The "instant justice" of vigilantism reflects both thin policing and people's uneven faith in the judicial system. Zambia ranks in the middle of African nations in terms of reported crimes, although statistics are unreliable. The police force of about 15,000 remains far below the 27,000 officers the government believes are required, and is supplemented by local volunteer "crime prevention units."37

While Zambia's Anti-Human Trafficking Act of 2008 criminalizes all forms of trafficking, there have been very few prosecutions under the law. The United Nations Office on Drugs and Crime describes Zambia as a transit route for trafficking of women and children for sexual exploitation from Lesotho and South Africa, and records reports of forced labor and sexual exploitation within Zambia.38 A $2 million effort to counter human trafficking in Zambia involves various UN bodies working with government agencies and civil society groups, and includes public awareness media campaigns and police training.

Citizens can make complaints through the courts and to various state bodies, including the HRC, the Anti-Corruption Commission, and the Police Public Complaints Authority. The effectiveness of such complaints is problematic, as these bodies possess limited investigative capacity and are subject to various degrees of political or bureaucratic influence or interference. The Commission for Investigations, headed by the investigator-general (ombudsman), is similarly weak.

There are few complaints of discrimination against ethnic or religious minorities in Zambia, although the ethnoregional bases of the main political parties are a potential source for more acute ethnic rivalries. Capacity to transcend ethnic bases is a key to success in future elections. Bemba-speaking people living primarily in northern Zambia comprise nearly 30 percent of Zambia's population and are the largest single linguistic group, although not all are ethnically Bemba. Nyanja and Tonga-speaking groups are each about 10 percent of the population. In 2010, Zambia experienced renewed activism by the Barotse Freedom Movement in Western Province, where ethnically Lozi groups predominate. In late October 2010, police refused a permit for and then dispersed a rally by supporters of the Barotse Freedom Movement, arresting several people. On January 14, 2011, police shot at protestors in Mongu, killing two and injuring scores, as calls for the government to recognize an independence-era agreement on the region's independence intensified. Subsequently, the government arrested dozens and charged them with treason.

Zambian law has maintained colonial-era prohibitions on homosexuality and current law provides up to 14 years' imprisonment for individuals who engage in homosexual acts.39 Zambia's lesbian, gay, bisexual, and transgender population has been subject to vilification by politicians and church leaders during discussions of gay rights in the draft constitution, and rights activists warn that rising intolerance could threaten the rights and health of many Zambians if homosexual men fear seeking medical care.40 Although Zambia is praised as one of the best-performing countries for antiretroviral drug access in Africa,41 the Zambia AIDS Law Research and Advocacy Network has urged lawyers in Zambia to help defend the rights of the approximately 1.5 million Zambians living with HIV/AIDS.42

Zambia ratified the UN Convention on the Rights of Persons with Disabilities in December 2009, and the official Zambia Agency for Persons with Disabilities has launched awareness programs in cooperation with several disabled persons organizations. The Zambian Constitution requires provision of just and equitable social benefits and amenities for disabled people, and The Persons with Disabilities Act 1996 prohibits discrimination on the grounds of disability. The International Labour Organization is cooperating with Zambian government agencies and CSOs to improve governmental capacity to implement and enforce these laws and regulations and mainstream disabled people into employment programs.

Religious freedom is guaranteed by of the Zambian constitution and respected in practice, although the constitutional designation of the country as Christian in 1996 raises concerns of possible discrimination against the small minority that are practitioners of other religions or nonreligious. Christian religious education is required in public schools. Some church groups' engagement in social justice issues has created tensions with the government and ruling party.

Zambia's modern legal system offers formal equality for women in official life and matters in which the state is directly involved. However, there are exceptions for customary practice that seriously undermine women's rights in the areas of marriage, inheritance, and property. Many women face serious difficulties if they are widowed or divorced, as the husband's family often claims nearly all family property. Under customary law, a divorcee is entitled only to kitchen utensils and gifts given by her husband. Lack of ownership rights and legal title to property also mean women have great difficulty obtaining credit.43 Zambia has ratified the Convention for the Elimination of Discrimination Against Women (CEDAW), but remains far from fully implementing its statutes into law and practice. Women hold few senior positions in official or private life; only 15 percent of parliamentarians are female, and women are sharply underrepresented in other government posts. The pipeline for increased female participation is still narrow, as male students predominate at the country's top universities.44 The participation of women in media production is low, and the representation of women in media output help shape negative perceptions regarding female rights and roles in society, according to media monitoring research.45

Violence against women is widespread and frequently goes unpunished. Traditional attitudes hinder governmental, civil society, and donor efforts to combat gender violence.46 Educational awareness programs, safe houses for gender violence victims, and increased training for police have been undertaken. A police body, the Victims Support Unit, is responsible for handling domestic violence, but suffers from obstacles to successful protection and prosecution, including a shortage of resources, equipment, and training.47 The draft constitution includes a formal Gender Equality Commission, but does not remove provisions that allow discriminatory practices under customary law. In September 2010, the official Zambia Law Development Commission announced that it is developing legislation to assure that women in marriages contracted under customary law gain the same rights to property, maintenance, and compensation as are provided by statutory law.48

Freedom of association and assembly are protected by the constitution and by law, although various regulations are applied to restrict these rights in practice. NGO registration requirements, including high fees, can dissuade grassroots organizations in particular from mobilizing. De facto permits for rallies or demonstrations are required in the form of seven-day police notification under the Public Order Act, and are sometimes denied on an apparently political basis. Other seemingly mundane laws are deployed politically: nine people, including two opposition MPs, were detained for five days in October 2009 after noisily protesting the dismissal of corruption charges against former president Chiluba. Patriotic Front parliamentarians Jean Kapata and Mumbi Phiri were charged with unnecessarily sounding their horns under the Road Traffic Act, as well as disorderly conduct.49

Police are sometimes quick to use force against unauthorized or unruly public gatherings, including trade union actions. Trade unionism was heavily state controlled under the one-party system, and remains amply regulated by provisions of the Industrial and Labour Relations Act. Most unions are members of the Zambia Congress of Trade Unions or the Federation of Free Trade Unions of Zambia. Trade union rights are respected in principal by the constitution, but essential workers, broadly defined to include the mining sector, are forbidden from striking. Even for workers legally permitted to strike, the process of declaring grievance and strike notification is long and complex; there have been no legal strikes in Zambia since 1994. Mineworkers have complained that government does not enforce labor laws, especially in foreign-owned enterprises.50 Chinese investment in Zambia's extractive industries has become a particular flashpoint, with political cultivation of populist resentment of the presence of Chinese workers and traders.51 There are reports of mistreatment of both Chinese and Zambian workers, and of disregard for Zambian investment and labor laws.52

RULE OF LAW

Zambia's judiciary presents a mixed record of independence and integrity – and on occasion, apparent bows to the political influence of the ruling party, especially in high-profile cases. Supreme Court and High Court judges are appointed by the president subject to parliamentary approval, and magistrates by the Judicial Services Commission in what is generally regarded as a fair process. However, the president may dismiss lower court judges at his discretion. According to an African Human Security Initiative monograph, "partisan politics, nepotism ... and the status of the litigants were possible factors in the determination of certain cases;" moreover, as in any open legal system, many state and non-state actors seek to influence the courts, including advocacy groups, media and traditional chiefs.53

The dismissal of corruption charges against former president Chiluba in August 2009 elicited myriad claims of executive interference, but officials at all levels respect decisions rendered by the courts. The December 2009 decision of Supreme Court Chief Justice Ernest Sakala that high-level corruption cases – including an appeal by ex-president Chiluba's wife against a corruption conviction – would be heard by three-judge panels was also contentious.54

Some prosecutions, particularly those for defamation or public order violations against independent media and oppositionists, appear to have clear political motivation. The president appoints the director of public prosecutions, whose office is funded through the Ministry of Justice; this lack of autonomy, and a general opacity in its operations, undermines confidence in the office.55 However, decisions such as the 2009 dismissal of charges against journalist Chansa Kabwela indicate that the government cannot be assured of judicial acquiescence in all matters.

At all levels, access to the system of statutory justice and its timely delivery are seriously affected by a lack of resources and court facilities. Accused criminals are considered innocent until proven guilty, have the right to legal representation, and trials are held in open court. Long delays in trials are onerous for all concerned, however, and extended periods of pretrial detention in abysmal conditions are common. Low remuneration for judges, magistrates, and other court officials increases susceptibility to corruption.

Physical access to formal courts is an obstacle for the rural poor, and the cost of retaining private counsel is beyond most Zambians' capacity. Especially in rural areas, traditional courts, which have power to impose fines but not imprisonment, are a favored means to resolve minor crimes or conflicts. The parallel traditional justice system operates according to local customs among Zambia's disparate ethnic groups, and is neither codified nor formally recognized in statutory law. Most traditional courts disfavor women. Yet these courts remain widely used because they are accessible and because they typically operate on principles of "restoration and reconciliation" within the local community.56 Official legal aid is usually limited to people accused of serious crimes. Legal aid NGOs offer legal and paralegal services, but can meet only a fraction of the overall demand. The Judicial Complaints Authority is appointed by the president and can receive complaints from any person, group or body regarding alleged judicial misconduct. Its proceedings are secret, however, and court officials other than judges are outside its scope.57 Appeals can often take at least two years, and the government has announced plans to increase the number of High Court and Supreme Court judges to help meet the backlog of cases.

There were no reports of interference by the security forces in court proceedings, and the military and intelligence services appeared to accept civil authority as a matter of course. As in many other areas, parliamentary oversight of military budgets is weak. Several top military commanders who served under former President Chiluba have been convicted of corruption. While Zambia armed forces have been notable for their lack of any overt political role, opaque military procurement and associated corruption remains a challenge.

Zambians have the right to own property individually or in association with others, and property rights and contracts are generally respected, although contract enforcement suffers from the general inadequacies of the overburdened court system. Under the Lands Act of 1995, land is held under customary tenure, and people may apply for title, although relatively few have done so. There have been reports in recent years of uncompensated appropriation of smallholder farmland for mining, tourism, and industrial agriculture.58 Civil society groups such as the Zambia Land Alliance have called for sweeping revisions to land laws. As noted above, women's and children's property rights, particularly those of widows and orphans, are frequently violated, particularly in rural areas where customary law biased against women often still holds sway.59

ANTICORRUPTION AND TRANSPARENCY

The experience and perception of endemic corruption in Zambia is an obstacle to economic growth, good governance, and faith in the democratic system. Support for a genuine anticorruption campaign appears to have died along with President Mwanawasa in 2008. In October 2009, President Banda disbanded the Task Force on Corruption created by Mwanawasa, reportedly after its leaders sought to appeal the acquittal of former president Chiluba (Mwanawasa's predecessor and a Banda ally until his death in June 2011) on graft charges. And in 2010, the government decided not to appeal the Zambian High Court's refusal to enforce a British court's 2007 finding that that Chiluba should repay Zambia $58 million that he gained corruptly as president from 1991-2001. The Anti-Corruption Commission (ACC), which has nominally taken up the defunct Task Force's investigations, is underresourced and underskilled, and the offices of the investigator-general (ombudsman) and auditor general have been described as "effectively moribund" due to "a policy of deliberate underfunding coupled with a failure to punish corrupt officials [with results that a] culture of impunity has developed and corruption has permeated government structures from the Presidency down to the lowest-ranking public service employee."60

Prosecutions do sometimes occur, but most former senior officials convicted of corruption remain free while pursuing a lengthy appeals process whose outcome is uncertain. MMD National Secretary and former finance minister Katele Kalumba was sentenced to five years' imprisonment for corruption in May 2010, but was freed pending an appeal to the High Court. Others convicted of various graft charges but free on bail while appeals are heard include MP Claver Silavwe, former Zambia Army commander General Geojago Musengule and two former Zambia Air Force commanders, General Christopher Singogo and General Sunday Kayumba.61 The results of these appeals will be a strong indication of the future of Zambia's anticorruption efforts.

Zambia has aggressively privatized state assets since the demise of one-party rule in 1991. Critics say the efforts have mostly benefited businesses close to the government who, according to a former senior official, "treat enterprises and assets lined up for privatisation as goods fallen from the back of a delivery truck."62 The 2010 sale of the insolvent government telecommunications company Zamtel to the Libyan government's sovereign wealth fund yielded $257 million and provided redundancy packages to company workers, but, the New York Times reported, "opposition figures, transparency advocates and some analysts argue that the transaction was cloaked in secrecy and riddled with irregularities," over payment to the sale's advisors and the government's refusal to release a valuation report.63 Other privatizations have been less contentious. In 2007, the Dutch Rabobank took a 49 percent stake and management of the Zambia National Commercial Bank, which has since improved profitability, listed successfully on the Lusaka stock exchange, and received investment to promote services in rural areas.64 The Zambia Revenue Authority reported that a buoyant economy and improved collection has helped increase tax revenues from January to August 2010,65 although a large portion of the country's economic life remains in the largely untaxed informal sector.

As in many countries, public contracting is a source of corruption. In 2009, the Zambia Public Procurement Authority (ZPPA) replaced the Zambia National Tender Board as part of several public financial management reforms. However, procurement standards often remain opaque or are not honored, and Transparency International Zambia and other groups have sharply criticized government procurement practices. The decision to cut the abuse of authority clause, a principal tool in prosecuting top-level corruption in Zambia, from the Anti-Corruption Commission Act passed in November 2010 removed an important control on future corruption. Zambia has scored very low on international corruption indexes, and a slight rise in the country's score in the 2009 Transparency International Corruption Perceptions Index was ascribed to the since circumscribed anticorruption efforts launched by Mwanawasa.66

Several donors have suspended aid programs due to alleged corruption. In 2009, Sweden and the Netherlands withheld $33 million in health ministry assistance after $5 million of aid went unaccounted for. In 2010, the Global Fund to Fight AIDS, Tuberculosis and Malaria announced that it had stopped $137 million in funding to Zambia's Ministry of Health, and was seeking alternative agencies with which to continue its work.67 The European Union has also halted aid to road-building projects. President Banda responded in June 2010 by accusing donors of interfering in Zambia's internal affairs ahead of the 2011 elections, stating, "we did not ask anyone to fund the road sector or the health sector, so they must not use that as blackmail,"68 adding on state-run radio, "this is not a banana republic. If somebody is fed up with us they should pack their bags and go where they came from."69

Donors are still supporting anticorruption efforts, however, with assistance both to state agencies and civil society groups whose voice is mostly heard through independent media. Private media outlets such as the Post have repeatedly reported allegations of official corruption. Donors are also supporting the government's agreement with the country's Chamber of Mines and civil society groups in 2010 to implement the Extractive Industries Transparency Initiative.70

Serious concerns over mineral exploitation continue, as royalty and taxation levels have allegedly contributed little to government coffers even as copper prices have soared.71 Issues regarding land rights, environmental effects, and working conditions in mining operations have been raised by civil society groups. The potential impact of exploiting the recent discovery of commercially viable uranium deposits is under particular scrutiny.72 A new measure giving some protection to whistleblowers was enacted in 2010. According to an AfroBarometer survey in 2009, Zambians perceive that corruption is increasing significantly, although only about 14 percent said they had paid a bribe directly in the previous year.

A 2010 report by the Media institute of Southern Africa-Zambia found that the education ministry and ECZ have improved sharing information with the public, but that the information ministry and other government agencies remained highly secretive.73 Citizens have neither the right nor the means to access public information. A freedom of information bill has languished in parliament since 2002, and the Zambian government remains reticent in sharing any information it deems sensitive, especially in a timely manner. There is scant disclosure of assets or income of public officials; only presidential candidates – and NGO board members, if the 2009 NGO law is implemented – are required to file asset reports. The state budget process remains opaque, especially in supplementary budgets and use of foreign aid. Inconsistent reporting by the auditor-general's office also reduces public ability to know how public funds are spent.74 Yet business and civil society groups, with donor assistance, are increasing capacity to successfully influence the budget process and other legislation by lobbying parliament.

RECOMMENDATIONS

Ensure that the entire electoral process allows the will of the Zambian people to be freely expressed by preventing the abuse of state resources and working with domestic and international observers to monitor compliance with voting secrecy requirements across the country.

Ensure that the draft constitution enshrines all regional and international standards, and fully reflects a high level of engagement by the broadest range of Zambians and their elected and civil society representatives.

Respect and promote independent media, establish a genuinely independent broadcasting authority that assures all state-owned media serves as public media and is not misused to advance partisan political interests, and enact and implement a robust freedom of information law.

Empower official anticorruption watchdogs to pursue all investigations without political influence or interference by increasing their autonomy and resources, and ensure that private and civil society actors engaged in monitoring or advocating regarding corruption may operate without interference.

Engage openly and fully with Africa Peer Review Mechanism to monitor and promote human rights and democratization in Zambia.

16"Zambia: NGOs in uproar after president signs new law," Integrated Regional Information Networks (IRIN), August 28, 2009, www.unhcr.org/docid/4a9e7dce1a.html; "Zambia: Freedom of association again in jeopardy," International Federation for Human Rights, July 30, 2009, http://www.fidh.org/Freedom-of-association-again-in-jeopardy-The.

44 "Zambia's Response to the United Nations Questionnaire On Implementation of the Beijing Declaration and Platform for Action (1995) and the Outcome of the Twenty-Third Special Session of the General Assembly (2000)," United Nations, 2009, http://www.uneca.org/acgd/beijingplus15/Questionnaire/DAW/English/Zambia.pdf.

58 "Zambia: Land and mineral rights in conflict," IRIN, August 30, 2010, www.irinnews.org/PrintReport.aspx?ReportID=90338.

59 "Impact of National Land Policy and Land Reform on Women in Zambia," Centre on Housing Rights and Evictions (COHRE), November 3, 2010, www.cohre.org/news/press-releases/zambia-women-and-land-policy-vs-reality; United Nations Development Programme (UNDP), Property Rights In Zambia, http://www.undp.org/legalempowerment/reports/National%20Consultation%20Reports/Country%20Files/26_Zambi a/27_4_Property_Rights.pdf, accessed April 25, 2011.

60 African Human Security Initiative, The Criminal Justice System In Zambia – Enhancing the Delivery of Security in Africa.